Who is Eligible for Non-Disclosure Orders in Texas?

Having a criminal record can create problems when you try to find a job or qualify for loans or housing. There is a way for some Texans to seal part of their criminal records so they can get on with their lives with fewer obstacles. 

A non-disclosure order tells public entities to keep certain information confidential that would otherwise be made public. However, not everyone with a conviction is eligible for one. 

What does a non-disclosure order do, and who can obtain one?

What Is a Non-Disclosure Order?

A non-disclosure order seals part of your criminal record and keeps public entities from disclosing certain criminal records. These entities include:

• Police departments
• Law enforcement agencies
• Jails and other detention facilities
• Courts, including clerks of the court

Also, you are not required to disclose information related to an offense subject to a non-disclosure order. You don’t need to list that offense on most job applications, either.

A non-disclosure order is a general rule with some exceptions. Some state agencies are still allowed to obtain information about an offense covered by the order. Also, the order only applies to a specific criminal offense, not all offenses that you may have on record. However, you might be able to obtain multiple non-disclosure orders to cover them.

Interested in obtaining an order of non-disclosure?
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Types of Non-Disclosures

The Texas Department of Public Safety classifies types of non-disclosure according to a variety of factors. All non-disclosure orders can be found in Section 411 of the government code:

• 411.072 – deferred adjudication community supervision, certain nonviolent misdemeanors if the defendant received a discharge and dismissal after September 1, 2017. All others of this type fall under Section 411.0725.
• 411.0725 – deferred adjudication community supervision, felonies, and certain misdemeanors.
• 411.0726 – deferred adjudication community supervision, certain Driving While Intoxicated (DWI) and Boating While Intoxicated (BWI) misdemeanors.
• 411.0727 – successful completion of Veteran’s Treatment Court Program.
• 411.0728 – victims of trafficking of persons or compelling prostitution.
• 411.0729 – non-disclosures for veteran’s re-employment program.
• 411.073 – community supervision following conviction of certain misdemeanors.
• 411.0731 – community supervision following conviction, certain DWI convictions.
• 411.0735 – conviction, certain misdemeanors.
• 411.0736 – conviction, certain DWI convictions.

Deferred adjudication community supervision is more commonly known as probation. Also known as DACS, deferred adjudication probation means your conviction may be deferred while you complete a period of community supervision while facing charges. 

DACS will hold as long as you pay your fines, attend any court-ordered classes or treatment, and adhere to the terms of your probation. Once the probationary period is successfully completed, the judge dismisses the indictment or information about the crime, sets aside the verdict, and releases you from any penalties you might face if you are convicted of charges after deferred adjudication is over.

Non-disclosure orders are handy for those who might not qualify for records expunction (having their record expunged) because they served a probation period. They still might be eligible for non-disclosure, which seals all records of the case without getting rid of them.

How to Obtain an Order of Non-Disclosure

To get a non-disclosure order, you file a petition in the court where the original case was heard. You pay a filing fee or submit a Statement of Inability to Afford Costs at the time of filing. You do not need to pay the clerk to notify the prosecutor of your petition or the law enforcement agencies if the order is granted.

The court sets a hearing date or informs you how to obtain a hearing setting, so you might need to contact the court yourself to get one. The prosecutor is given the opportunity to respond to your petition either with an objection or a non-objection. 

It is critical for you to make arrangements to attend this hearing.

After a non-disclosure order is granted, a clerk sends a copy to the Department of Public Safety within 15 business days after the judge signs it. The DPS then sends a copy of the order to other government agencies within 10 business days. You are responsible for telling private background check companies to remove your record from their databases.

Eligibility Requirements

To use Section 411.0735 as an example, eligibility typically considers several factors. Section 411.0735 deals with the conviction of certain misdemeanors. In this case, you were convicted of a misdemeanor offense with sentencing that imposed conditions, fines, costs, imprisonment, or restitution. 

The offense must not have occurred while operating a vehicle while intoxicated or committing an organized crime offense. The offense cannot be sexual or violent in nature. For the purposes of this requirement, simple assault is not counted as a violent crime.

You must comply with all sentencing terms, including terms of confinement and payment of all fines, costs, and restitution. Also, you must not have a previous conviction or probation placement for another offense outside of a traffic offense that only carried a fine.

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How Long Do You Have to Wait?

Non-disclosure orders have a waiting period for eligibility. You can apply for the non-disclosure order on or after the date you complete your sentence if your offense was a misdemeanor in which you only paid a fine. That means mostly Class C misdemeanors. 

Otherwise, you can apply on or after the second anniversary of the date you completed your sentence for all other misdemeanor convictions and particular felony convictions.

Who Is Not Eligible?

Those convicted or placed on deferred adjudication for the following crimes are not eligible for non-disclosure orders.

• Murder, including capital murder
• An offense requiring registering as a sex offender
• Aggravated kidnapping
• Any other offense involving family violence
• Injury to a child, elderly person, or disabled person
• Abandoning or endangering a child
• Violation of a protective order issued for family violence, stalking, abuse, or sexual assault

If you are convicted of a second or subsequent DWI, you are no longer eligible for a non-disclosure order. 

Get an Attorney to Help

There are half a dozen forms or more that you must obtain and submit with your petition for an order of non-disclosure. Have an experienced criminal attorney review those forms before filing them to ensure you take all the proper steps within the legal system. 

Working with a lawyer can significantly enhance the likelihood of the court granting your petition. Also, an attorney can help you get the charges reduced or changed to charges that don’t disqualify you from a non-disclosure order. 

As your lawyer, Greg Tsioros works aggressively to get charges changed so you can obtain a non-disclosure order or even dropped so you can move forward with an expunction. To get started, contact the Law Office of Greg Tsioros today.